' NAIMUDDIN, J.-This petition under Article 9 of the Provisional Constitution Order, 1981, arises under the following circumstances :-
2. Messrs Rassool Bux Unar, Ali Ahmed Patoli and Khamiso Khan, all advocates, contested Sind Bar Council Election for Badin Thatta seat in the year 1978.
3. Mr. Rasool Bux Unar, Advocate was declared as successful candidate in the Election.
4. Mr. Khamiso Khan and Mr. Ali Ahmed Patoli who were defeated candidates, filed objection under rule 61 of the Bar Councils (First Election) Rules, 1973, before the Chairman, Sind Bar Council, which were referred by him to the Ist Election Tribunal.
5. The learned 1st Election Tribunal by consent of the parties passed the following order on 10th January, 1980 on the objections : "Mr. Rasool Bux Unar shall resign his seat on Sind Bar Council on expiry of a period of two years from the date of his election to the seat. He shall not again contest for the election for same constituency during this term.
' Mr. Patoli who was the runner-up for the last election shall also communicate his distinclination to serve as the member of Bar Council on the same seat for the remaining two years. This is done to facilitate fresh election of the seat for a period of two years to enable Mr. Khamiso Khan to contest the bye-election. Both Mr. Rasool Bux Unar and Mr. Patoli shall not contest the bye-election."
6. On the basis of the above order passed by the 1st Election Tribunal for holding fresh Election for Sind Bar Council Badin-Thatta seat, Respondent No, 2 published a programme for the conduct of Election in accordance with the Rules. According to this programme, the Election for Badin-Thatta seat was to be held on 6th April,1982. The programme was published and sent to the concerned District Bar Association about a month in advance of the holding of Election i. e. 6th April, 1982 and accordingly the elections were held and on 15th April, 1982, the petitioner was declared successful.
' Aggrieved by the declaration Mr. Khamiso Khan filed objections before the Chairman, Sind Bar Council, which were referred to the Election Tribunal headed by Mr. Justice Ajmal Mian.
The learned Tribunal by the order dated 12th June, 1982 declared the election of the petitioner as void on the ground that the attention of the Election Tribunal was not brought to section 16 of the Legal Practitioners and Bar Councils Act, 1973 (hereinafter called the Act) and directed the Bar Council to fill in the vacancy in terms of section 16 (b) of the Act.
' We have heard Mr. S. Madad Ali Shah, Advocate for the petitioner. It is submitted by the learned counsel for the petitioner that the order of the Election Tribunal is in violation of the principles of natural justice inasmuch as the same was passed without notice to the petitioner and is also in disregard of rule 67 of the Bar Council Rules, 1973.
' So far as the first contention is concerned we had sent for the recor and from the record we find that first notice dated 29th May, 1982 wads issued for hearing on 5th June,. 1982 and then notice dated 5th June, 1982 was issued for hearing on 12th June, 1982. The original record also contains the acknowledgment due receipts of the notices. It was, however, pointed b A the learned counsel that the acknowledgment receipt does not bear the seal of the post office and signature of the petitioner. We, therefore, required the Secretary of the Sind Bar Council to produce the postal receipts and accordingly he produced the receipt bearing Nos.
184. Not only that but the last notice was also sent under Certificate of Posting. The learned Counsel did not deny that the notice was correctly addressed to the petitioner at the following address : "Mr. M. Suleman Memon, Advocate, Bhugra Memon House. Shahbaz Road, Badin."
' In fact the petitioner has given in the petition his address as : "Advocate, M. Suleman s/o Muhammad Yakoob Memon, adult, Muslim, r/o Badin."
' We are, therefore, satisfied that the petitioner had due notice of the 1 hearing.
' As regards the second part of the submission we find that the learned Tribunal has observed on this point as follows : "(b) It may be pointed out that the attention of the then learned Election Tribunal was not invited to the provisions of section 16 of the Legal Practitioners and Bar Councils Act, 1973, which reads as follows :-
16. Filling of casual vacancies : (V ?)
If the seat of a Member of a Bar Council becomes vacant during the term of office of the Council :- "(a) in the case of the Pakistan Bar Council, the vacancy shall be filled by a person elected in accordance with the provisions of section 11 ; and
(b) in the case of a Provincial Bar Council, the vacancy shall be filled by the person who received, in the same election and from the same district or, as the case may be, group of districts, the highest number of votes next after the member the vacancy in whose seat is to be filled, or if there be no such person, by a person eligible for election to that Council from the same district or, as the case may be, group of districts who is co-opted by the Provincial Bar Council."
' It may be noticed that under clause (a) a vacancy in case of Pakistan Bar Council is to be filled in, in accordance with section 11 of the Act which contemplates election, whereas under (b) of the above-quoted section the vacancy in respect of a Provincial Bar Council is not to be filled through a bye-election, but in the manner provided thereunder, namely, by the person who had secured the highest number of votes next after the member the vacancy in whose seat is to be filled, or if there is no such person it is to be filled by a 'person eligible for that council from the same District or the group of Districts who is co-opted by the Provincial Bar Council. In this view of the matter the bye-election of the vacancy in question is clearly in violation of the above provision.
(c) It may be pertinent to refer to rule 67 of the Pakistan Legal Practitioners and Bar Councils Rules, 1976, which provides that "if it is not possible to elect a person by the method provided for in rule 66 a fresh election shall be held. It may also be mentioned that rule 66 provided more or less similar provision to that of clause (b) of section 16, by providing that the next person who would have been entitled to be declared elected in the absence of the person whose election is declared void, would be given the seat. In my view it is not necessary for me to examine the question whether above rule 67, which contemplates a fresh election is in violation of clause (b) of section 16 of the Act.
However, it may be observed that the Provincial Bar Council may consider this aspect and may take appropriate action to avert future uncertainty."
We agree with the above observations and would add that if the rules a are in conflict with the provisions of the Act, the provisions of the latter shall prevail and since it is not disputed that the order is in accordance with section 16 (b) of the Act, no exception could be taken to it.
' We, therefore, dismiss this petition in limine.